Don’t Hold It Against Me

Part of the Break Point Special Report
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Admitting to a past depressive episode could get a physician in trouble with the Medical Licensure Board. Some of the MLB’s questions – called overly broad and discriminatory by the Department of Justice – have been amended, but many still remain problematic.

Steven H Miles, a medical faculty ethicist at the University of MN suffered a depressive episode that was successfully treated and re- solved with medication. When a medical student at his institution subsequently completed suicide, and it was rumored that the student feared mental health care-seeking because of potential adverse consequences to his career, Miles revealed his diagnosis and successful treatment to the student’s surviving classmates [1].

He informed his clinical supervisors, who were greatly surprised, because there had never been any indication in the faculty member of anything other than exceptional capacity.

Subsequently, Miles truthfully answered questions regarding his mental health history on his Medical Licensure Board (MLB) renewal application, giving his diagnosis, contacts for his treating physician and his history of successful treatment.

The MLB board then demanded copies of all of Miles’ psychiatrist’s medical notes and records. Miles and his treating psychiatrist did not comply with the demand, and both were then threatened by the MLB with licensure action.

Miles spent many thousands of dollars on legal fees attempting to negotiate with the MLB. He finally fired his attorney for being too docile, and subsequently reported his treatment at the hands of the MLB and the wording of the licensure questions to the Department of Justice on his own behalf. The DOJ issued an opinion letter that the licensure questions were overly broad and discriminatory under the Americans with Disability Act ADA towards an individual with a cognizable disability.

The MLB ignored the letter until a second, stronger opinion letter was issued by the DOJ. After a frank discussion with the MLB about the potential consequences of ignoring a DOJ opinion, the threats of licensure actions were withdrawn and the faculty member and his psychiatrist’s licenses were no longer under threat [2].

The questions on the MLB application in that state were subsequently changed so as to be in compliance with the ADA. This reversal was not widely publicized, although it was discussed at the Federation of State Medical Boards (FSMB) and other industry settings, as had been a similar 1993 case in which the New Jersey Medical and Dental Society successfully sued the New Jersey State Medical Board over similar issues [3].

Several state MLB application questions were amended following the above case and the Jacobs decision. However, at least five published studies subsequent to these cases have demonstrated that questions are still being asked of physicians that would likely be deemed impermissible as discriminatory under the ADA if challenged.

An example of a probably impermissible question would be one that does not limit questions about mental health to conditions that CURRENTLY impair the ability of the physician to practice safely. So for example, a question such as “Have you ever been treated or hospitalized for a mental illness” would be overly broad and discriminatory, as would “Have you ever been diagnosed with a mental illness,” un- less coupled with a clarifier regarding current impairment.

It has been recently publicized on Medscape and numerous other publications that threats of licensure investigation, including those resulting from resistance to poorly tailored interventions by physician health programs (especially those that refer selectively to expensive for-profit rehabilitation facilities) can be devastating psychologically, financially, and professionally to physicians [4,5]. I am trying to determine how a physician who has a common, easily treatable mental health diagnosis that has never in any way been noticed by colleagues or caused any detriment to patient care or hospital or community citizenship participation should handle questions that are not only highly invasive of privacy (which intrusion would never be inflicted on a non physician), but also blatantly impermissible under federal law.

I am working with a team of medical and legal faculty (and some who are both) to address this issue. It would be helpful to know how many EPM readers have been faced with this conundrum. It would be VERY helpful if readers who are currently applying for licensure/ renewal would send the questions currently being asked as well as the name of the Medical Licensure Board. If you wish to help, or are seeking advocacy, please consider joining my LinkedIn group Physician Advocacy Exchange.

7 Comments

I have a colleague who had metabolic encephalopathy and was hospitalized for this. She checked the box on the Illinois licensure renewal stating that she had at some point in time been unable to practice, during the time of her hospitalization, during the 3 years prior to her renewal. The Illinois State Board came after her, and threatened to suspend her license unless she submitted to open ended psychiatric examinations, and medical examinations. She was at the time of licensure renewal fully employed and had gained an award for her work.
She did not have any money for legal representation and she was unable to find a Psychiatrist of her choosing who would examine her for under $4000.00.
In the end she wrote to the Board and stated that she could not fight their allegations of her being mentally ill due to inability to afford legal representation and she requested that her License be cancelled . She gave up Medicine .

CMH’s story of colleague is tragic. We simply have to have an organization that represents physicians’ interests, advocates for them in this senseless bureaucratic nightmare and makes change happen at the legislative and judicial level. I’m glad to see Dr. Andrews starting such an advocacy group on LinkedIn. (see link end of article above)

DD, yes, of course please do. Please send to EPMatPhaxdotorg so I may collect these for a future study. Incidentally, I understand Maryland’s physician health program (PHP) has a relatively good reputation. If you have any knowledge or experience with them, please also share this with me confidentially if you will.

CMH, I am saddened to hear of this. Physicians are after all human and are subject to all of the same diseases as other humans, in fact more because of our exposure to patients with communicable diseases, and the tendency of our practice to make us less attentive to health preserving practices such as sleep hygiene, healthy diets, play, and relationships. For us to be singled out as a result of our humanness for expensive proofs of fitness to practice, and one-size-fits=all interventions on pain of loss of livelihood is IMO unconscionable. Thank you for sharing your colleague’s experience. Please ask her to consider joining the Physicians Advocacy Exchange (PHAX) on Linked IN if she is still trying to find legal advocacy, or just wants to help others to learn more.

DD As sad as this is for a person who has already left the practice of medicine because of MLB coercion related to a medical disease, it will not hurt her now.
I would caution everyone from using the term “blacklisting” even though that’s what it feels like for most physicians.
The federal government requires that reporting be made to the NPDB by any entity that takes action against a medical practitioner. This includes of course MLBs, but also hospitals, insurers, medical associations, and also professional liability insurers who make a payment on behalf of the practitioner. Because malpractice is so ubiquitous now in medicine, many, MANY of your colleagues have already been entered into this system. It adds another level of complexity and explaining when seeking future credentials, but if the report is accurate, you can usually explain to the satisfaction of these credentialers. Anyone who has been listed and is still in practice should IMMEDIATELY see what exactly has been posted, so as to make sure that it is accurate. Anyone who is about to be listed as a result of a malpractice judgment or settlement should be sure that their defense attorney vets the wording for accuracy. There is a limited window during which the wording can be changed.
April, nurses are certainly welcome to join the PHAX group. If I didn’t mention it, the current class action suit against the MI board and PHP (http://www.chapmanlawgroup.com/hprp-class-action/) is predominantly on behalf of nurses.

I just received a call from my colleague and said that she had notice from the Board that they had black listed her in the National Data Base. She could not tolerate looking up what they had said.
This is persecution

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